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Commonwealth v. Cruz

Superior Court of Pennsylvania

July 17, 2013

JUAN B. CRUZ Appellant

Appeal from the Judgment of Sentence of January 12, 2006 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0704881-2004




Juan Cruz ("Appellant") appeals from the judgment of sentence entered on January 12, 2006. We affirm.

Viewing the evidence in the light most favorable to the Commonwealth, as we must, the evidence at Appellant's jury trial established the following factual background:

On May 8, 2004, at approximately 8:40 p.m., a blue Oldsmobile Toronado was travelling southbound on 5th Street near 67thAvenue when it struck two pedestrians, Evelyn ("Evelyn") and Lynda ("Lynda") Hernandez, as they were crossing the street. Both were transported to Albert Einstein Hospital with internal injuries, lacerations, and head trauma. Lynda, age 4, was pronounced dead at approximately 9:00 p.m. as a result of injuries sustained in the accident. Evelyn, age 15, was transferred to The Children's Hospital of Philadelphia ("CHOP") where she remained in a coma for four months and also suffered substantial paralysis on the right ride of her body.
Two witnesses, Lewis Duncan ("Duncan") and Malcolm Harper ("Harper"), saw the accident from Duncan's car which was parked near the scene of the accident. Duncan testified that a man with facial hair driving a four door burgundy car "blew past" him. Duncan also testified that after the driver hit the victims, the driver "hesitated a few seconds, looked, and took off." Harper's testimony corroborated Duncan's testimony and described the driver as a "light skin or a Puerto Rican [male] . . . with a thick mustache and straight hair" who was driving a "dark color" car. Both men testified that the driver's car would have suffered damage, if any, on the front passenger-side.
Police recovered Evelyn's sneakers, three blue "snap-on" barrettes, and three blue "twisty ball" barrettes from the north and south-bound lanes. Accident Investigation Division ("AID") Police Officer Franklin Steed ("Steed") testified that the distance between Evelyn's sneakers indicated that the car was moving faster than 35 miles per hour, and that Evelyn "was still on the vehicle after being contacted." Evelyn's sneakers also made a mark on the street indicating that she was dragged after the initial collision.
Shortly after midnight on May 9, 2004, the Police received information that a 1990 Oldsmobile Toronado ("Toronado") had been involved in a collision and had damage to its front passenger side, including a dislodged headlight, cracked headlight housing, a white "scuff mark" on the dented hood, and a damaged windshield. AID Police Officer Roosevelt Gibbs ("Gibbs") testified that he examined the car and found a blue ball in the area underneath the base of the windshield of the vehicle, that the airbag had been deployed, and that there was an open bottle of beer in the center console. Based upon his examination of dust on the surface of the car, Gibbs testified that the external damage occurred recently.
The police then traced possible ownership of the car to [Appellant, ] who was contacted after midnight on May 9, 2004, at his home. When he opened the door to the police and was asked about the car, [Appellant] stated that he owned the Toronado and that he had been in an accident, that he had left the scene of the accident, and that he was drunk.
John Caranci ("Caranci"), [Appellant's] co-worker, testified that [Appellant] appeared intoxicated at 3:00 p.m. on May 8, 2004, the day of the accident. Caranci told [Appellant] to go home and believed [Appellant] did so but that he had returned at approximately 7:45 p.m. to pick up his paycheck. Caranci testified that [Appellant] did not appear intoxicated when he picked up his paycheck.
Lynda's grandmother, Evelyn Hernandez ("grandmother"), testified that Lynda frequently wore blue barrettes with blue balls in her hair to match her school uniform. The grandmother identified the blue ball found under the windshield of the defendant's Toronado as belonging to Lynda.
Dr. Richard Cohn ("Cohn"), the Laboratory Director at Drug Scan, a federally-certified laboratory, and a board-certified forensic toxicologist, testified that [Appellant's] blood alcohol content ("BAC") was above 0.08 percent at the time of the accident to a reasonable degree of scientific certainty based on the following: that [Appellant] had a .232 percent BAC level at 7:20 a.m. on May 9, 2004; testimony that [Appellant] continuously showed signs of intoxication from 4:00 p.m. on May 8, 2004, until 7:20 a.m. on May 9, 2004; and, the alcohol dissipation rate of [Appellant's] body during this time period.

Trial Court Opinion ("T.C.O."), 8/7/2012, at 2-5 (citations to notes of testimony omitted).

Appellant was tried by jury from October 31 to November 5, 2005, and found guilty of driving under the influence ("DUI"), aggravated assault by vehicle while DUI, homicide by vehicle while DUI, causing an accident while not properly licensed, failure to stop in the event of an accident, simple assault, involuntary manslaughter, and recklessly endangering another person ("REAP").[1] On January 12, 2006, Appellant was sentenced to five to ten years' incarceration for aggravated assault by vehicle; one to two years for REAP, to run concurrently; three and one half to seven years for homicide by vehicle while DUI, to run consecutively; and three and one half to seven years for failure to stop in the event of an accident, to run consecutively, for an aggregate sentence of twelve to twenty-four years' incarceration. As well, Appellant was assessed a $2, 500 fine and $25, 000 in restitution.[2]

On January 30, 2006, Appellant filed a direct appeal with this Court. On April 26, 2006, this Court dismissed Appellant's appeal for failure to file a docketing statement pursuant to Pa.R.A.P. 3517, and ordered Appellant's counsel to acknowledge this order by filing a certification within ten days. No certification was filed. On March 10, 2010, Appellant filed a pro se Post Conviction Relief Act ("PCRA")[3] petition claiming that his attorney abandoned him. On February 24, 2012, the trial court granted Appellant's petition, reinstated his right to appeal nunc pro tunc, and appointed new counsel. This appeal followed.[4]

Appellant raises the following issues:

1. Whether the suppression court erred by failing to suppress Appellant's statements in response to incriminating police questions concerning Appellant's connection to the vehicle that the police already determined to be involved in the accident, but nonetheless questioned Appellant in the absence of any prior warnings, see Miranda v. Arizona, 384 U.S. 436 (1966), and in circumstances where Appellant was deemed by ...

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